East London Motors (Pty) Ltd v Hodgkinson

• Jurisdiction: South Africa
• Judge: Wynne J
• Judgment Date: 24 January 1957
• Citation: 1957 (2) SA 185 (E)
• Hearing Date: 24 January 1957
• Court: Eastern Districts Local Division

Wynne, J.:

As I said during the hearing this morning, it is undesirable that, sitting as a single Judge in vacation, I should (without prior reference to the JUDGE-PRESIDENT and my Brethren) make any statement bearing upon any question of practice in this Division.

H However, it would seem that practitioners might with advantage consider the effect of the decision in Grosvernor Motors (Cape) Ltd v Samson, 1956 (3) SA 169 (C), where the procedure to be adopted in respect of applications for default judgment under Rule 18 in the case of claims for return of goods in terms of sec. 17 (1) of the Hire-Purchase Act, 36 of 1942, had been referred for argument to the Full Bench.

Wynne J

In the judgment of HERBSTEIN, J. (with whom OGILVIE THOMPSON, J., concurred), the following relevant passage appears at p. 175 C - F of the report:

'It seems to me that this Court should apply this precedent to the matter under consideration and lay down that a plaintiff who applies under sec. 17 (1) of the Hire-Purchase Act for a judgment ordering the A return of any goods should have the right to file an affidavit setting out such information as might be required to enable the Court to determine what order it should grant; where the plaintiff is not in a position to give the necessary information it should set this out and thus enable the Court to exercise the powers given by sec. 17 (7). In either case a copy of the affidavit should be served on the defendant.

If the defendant is in default and the required information is before it, the Court will be in a position to grant a judgment under Rule 18 and will, normally, do so. If the required information has not been B given the Court will be in a position to decide what steps - whether under sec. 17 (7) or otherwise - should be taken to ensure that it is forthcoming. As and when this information is placed before it, the Court, again, will be able to, and should, grant a judgment under Rule 18.'

Thereafter reference is made to the fact that the procedure adopted in C the Transvaal is similar. (Cf. the judgment of RAMSBOTTOM, J., in Lucey's Motor Car Sales (Johannesburg) v Motsuane, 1950 (2) SA 181 (W), which was followed by KUPER, J., in Centenary Finance Co. (Pty.) Ltd v Moller, 1955 (4) SA 88 (W).)

These references might be of assistance to practitioners in considering D the information to be furnished on affidavit to the Court, and for the requirement of service of this affidavit on the...